Intermarriage and interaction between people from different countries and cultures sometimes causes stress and problems when things go wrong for couples. Children may be moved between jurisdictions by consent between their parents or as a result of legal action. They may also be moved between jurisdictions because they have been abducted in clear breach of the law.
We have successfully represented American, British, Canadian, European parents and parents of other nationalities in Pakistan in proceedings under the Guardians and Wards Act 1980 and related family law legislationsuch as the Child Marriage Restraint Act 1929, the Dissolution of Muslim Marriages Act 1939, the Muslim Family Law Ordinance 1961, the (West Pakistan) Muslim Personal Law (Shariat) Application Act 1962, the (West Pakistan) Family Courts Act 1964 and the Dowry and Bridal Gifts (Restriction) Act 1976. We also have a concentration in this regard in relation issues surrounding forced marriage and child abduction and wrongful retention.
The Hague Convention on the Civil Aspects of International Child Abduction 1980 lays down the framework for addressing issues in relation to children who are wrongfully removed from one jurisdiction to another. It also tackles issues in relation to retention of children outside the country of their habitual residence. The Hague Convention sets out the law and procedure that should be followed to ensure the immediate return of children to the jurisdiction of their habitual residence. The Convention attempts to address and resolve the dilemmas posed by the movement of children across international borders.
On 22 December 2016, Pakistan deposited its instrument of accession to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abductionand thus became the 96th Contracting State to the Convention. The Convention entered into force for Pakistan on 1 March 2017. Pakistan designated a judge in 2013 to the International Hague Network of Judges (IHNJ) specialised in child and family law matters, the Honourable Mr Justice Tassaduq Hussain Jillani, former Chief Justice, Supreme Court of Pakistan (now retired). Justice Jillani also served as co-Chair to the Working Party on Mediation, established in 2009 within the “Malta Process,” to facilitate the development of mediation structures to resolve cross-border family disputes. The Malta Process promotes co-operation with countries with legal systems influenced by or based upon Shari’a law, for the international protection of children and the resolution of complex, trans-frontier family conflicts.
Pakistan also played an active role in the recent May 2016 Fourth Malta Conference on cross-frontier child protection and family law (“Malta IV”) within the Malta Process. The Malta IV meeting recognised that the 1980 Child Abduction Convention, the 1996 Child Protection Convention and the2007 Child Support Convention support a number of key principles expressed in the 1989 United Nations Convention on the Rights of the Child, all in the best interests of children. The experts noted that these Hague Children’s Conventions are designed to be global in reach and to be compatible with diverse legal traditions. While not a Member State of the Hague Conference, Pakistan is now a Contracting State to two Hague Conventions, the other instrument being the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
The Hague Convention provides a structure to support contracting states, by providing a various civil, non-criminal, legal formalities and procedures for the protection and safe return of abducted children when taken abroad by a parent or a custodian from Convention countries.
While ratifying the Convention, Pakistan has ensured that it will apply to all its and confirmed in its acceding statement that the Hague Convention is a state specific multi-lateral commitment. Therefore, it is now an obligation of the Federal Government to ensure its implementation through appropriate means and vested powers to the Central Authority under statute as of 25 September 2017. However in its accession, Pakistan has also made certain reservations in relation to articles 8, 10, 15 and 16 of the Convention.
Pakistani law deals with child abduction with provisions from the Pakistan Penal Code, the Code of Criminal Procedure and the Guardian and Wards Act 1890. The Hague Convention, under article 2, requires contracting states to make all necessary efforts to implement the Convention in their domestic legal system. Accordingly, subsection 3 of section 5 of the West Pakistan Family Courts Act 1964
has been amended by virtue of SRO No 980 (1) 2017 to include in its schedule Part 1 No – 6A “Matter pertaining to return of the child under the Hague Convention on Civil Aspects of International Child Abduction,1980” so as to transpose international standards into Pakistan’s domestic law. The amendment automatically extends the jurisdiction of all family courts in Pakistan dealing cases under section 25 of Guardian and Wards Act 1890 to entertain matters relating to international child abduction disputes concerning custody, orders passed by foreign courts and judgments from contracting states of the Hague Convention.
The Solicitor General’s Office in the Ministry of Law, Justice and Human Rights in Pakistan is the designated Central Authority under article 6 of the Convention. Therefore, Pakistan is now finally ready to interact robustly on children’s issues with the rest of the world. All this is very helpful to the millions of overseas Pakistanis and the entry of the Convention into force in domestic Pakistani law is a very positive sign. It is, indeed, the beginning of a new chapter in international legal cooperation in Pakistan’s judicial history.
Through our well established and trustworthy network in the UK, Khan & Co Barristers-at-Law provide specialist advice and representation in child abduction law and deals with matters in England and Wales under the Children Act 1989 and allied legislation. With the exception of Denmark, the EC Regulation 2201/2003 (or ‘Brussels II’) applies to all European Community Member States as regards parental responsibility of children, and it lays down that the court of the Member State in which the child is habitually resident will generally have jurisdiction.